United States District Court, W.D. North Carolina, Charlotte Division
SHAKEERA MYERS, on behalf of herself and all others similarly situated, Plaintiff,
LOOMIS ARMORED US, LLC, Defendant.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Plaintiff's Motion for
Conditional Certification Pursuant to the Fair Labor
Standards Act, Court-Authorized Notice to be Issued under 29
U.S.C. § 216(B), Class Certification under Fed.R.Civ.P.
23, and Appointment of Class Counsel Under Fed.R.Civ.P.
23(G). (Doc. No. 26). Defendant responded to the motion,
(Doc. No. 31), Plaintiff replied, (Doc. No. 33), and this
motion is now ripe for review.
Shakeera Myers (“Myers”) brings suit against
Defendant Loomis Armored US, LLC (“Loomis”) for
alleged violations of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 216(b), and the North
Carolina Wage and Hour Act (“NCWHA”), N.C. Gen.
Stat. §§ 95-25.6, 95-25.8. (Doc. No. 1). According to
Myers' Complaint, Loomis is a cash management specialist
business offering uniformed and armored guard services. (Doc.
No. 1, p. 6). Myers and putative plaintiffs worked as Armored
Service Technicians (“ASTs”), an all-encompassing
title for guards, drivers, messengers, and/or similar
positions. Id. at 6-7. As ASTs, they were
responsible for transporting cash and valuables in armored
vehicles, in addition to replenishing ATM machines.
Id. at 6. Myers and putative plaintiffs contend that
Loomis maintained a company policy wherein ASTs were paid
“straight time” for all hours worked on weekdays,
even when their hours worked on weekdays were in excess of
forty hours per week. (Doc. Nos. 1, p. 2; 27-4, p. 4; 27-5,
p. 4; 27-6, p. 4; 27-7, p. 4; 27-8, p. 4; 27-9, p. 4). For
hours worked in excess of forty hours per week worked on
weekend, Myers and putative plaintiffs allege that they were
at times paid only one-half times their regular rate. (Doc.
Nos. 1, p. 2; 27-4, p. 4; 27-5, p. 4; 27-6, p. 4; 27-7, p. 4;
27- 8, p. 4; 27-9, p. 4). Myers and putative plaintiffs aver
that they can demonstrate that they “regularly
performed a significant portion of their work, i.e.
entire shifts, in vehicles weighing less than 10, 000
pounds” such that the small vehicle exception overrides
any exemptions to the overtime requirements under the FLSA.
(Doc. No. 33, p. 6) (emphasis in original); see also
(Doc. Nos. 27-4, p. 3; 27-5, p. 3; 27-6, p. 3; 27-7, p. 3;
27-8, p. 3; 27-9, p. 3). Finally, Myers and putative
plaintiffs allege Loomis made deductions from their wages for
equipment without proper written authorization and/or they
have personal knowledge of other ASTs who have been victims
of this policy. (Doc. Nos. 27-4, pp. 5-6; 27-5, pp. 4-5;
27-6, pp. 4-5; 27-7, pp. 4-5; 27-8, pp. 4-5; 27-9, pp. 4-5).
Myers seeks (1) unpaid overtime compensation for hours worked
in excess of forty hours per week pursuant to the FLSA; and
(2) all earned, accrued, and unpaid (wages) promised
straight-time, overtime, and unauthorized deductions pursuant
to the NCWHA. See (Doc. No. 28, p. 9).
CONDITIONAL CERTIFICATION UNDER 29 U.S.C. § 216(b)
seeks conditional certification and authorization to send
court-supervised notice under the FLSA, 29 U.S.C. §
216(b), for the following class:
[A]ll individuals who were, are, or will be employed by
Defendant in North Carolina as armored service technicians,
including armed drivers, armed messengers, and armed guards,
or in similar positions at any time within the three (3)
years prior to the filing of the Complaint, through the
present, and who were not compensated at the appropriate one
and one-half (1.5) times their regular hourly rate for all
hours worked in excess of forty (40) per week.
(Doc. No. 28, p. 9). Myers alleges that Loomis violated the
FLSA by misclassifying Myers and other current and former
Armored Service Technicians (“ASTs”) as exempt,
depriving them of overtime premium pay to which they are
entitled under the FLSA. (Doc. No. 1, pp. 8-9). Myers argues
that she and the alleged class members are similarly situated
in that they were victims of a single decision, policy,
practice, or plan that resulted in unpaid regular and
overtime wages in violation of the FLSA. Id. at
9-10. Loomis objects, arguing that court-approved notice is
not appropriate because Myers has not shown she is
“similarly situated” to other ASTs employed at
Loomis North Carolina branches. See (Doc. No. 31, p.
FLSA “embodies a federal legislative scheme to protect
covered employees from prohibited employer conduct.”
Houston v. URS Corp., 591 F.Supp.2d 827, 831 (E.D.
Va. 2008). Pursuant to section 216(b), “[a]n action . .
. may be maintained against any employer (including a public
agency) in any Federal or State court of competent
jurisdiction by any one or more employees for and on behalf
of [herself] or themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). “[U]nlike in
a class action filed pursuant to Federal Rule of Civil
Procedure 23 or a comparable state court rule, in a
collective action under the FLSA, a named plaintiff
represents only [herself] until a similarly-situated employee
opts in as a ‘party plaintiff' by giving ‘his
[or her] consent in writing to become such a party and such
consent is filed in the court in which such action is
brought.'” Simmons v. United Mortg. & Loan
Inv., LLC, 634 F.3d 754, 758 (4th Cir. 2011) (quoting 29
U.S.C. § 216(b)). Under the FLSA, a district court may
exercise its discretion and, in appropriate cases, certify an
action as a “collective action” and facilitate
notice of the suit to a putative class of potential
plaintiffs. Hoffmann-La Roche Inc. v. Sperling, 493
U.S. 165, 169 (1989); Quinteros v. Sparkle Cleaning,
Inc., 532 F.Supp.2d 762, 771 (D. Md. 2008).
of a collective action is a two-stage process. Pelczynski
v. Orange Lake Country Club, Inc., 284 F.R.D. 364, 367
(D.S.C. 2012). “First, a plaintiff seeks conditional
certification by the district court in order to provide
notice to similarly situated plaintiffs” that they can
“opt-in” to the collective action. Id.
at 367-68. To proceed as a collective action at this stage,
plaintiffs need only make “a modest factual
showing” that they were victims of a common policy or
practice that violated the FLSA. Essame v. SSC Laurel
Operating Co., 847 F.Supp.2d 821, 825 (D. Md. 2012). At
the notice stage, the court “does not resolve factual
disputes, decide substantive issues on the merits, or make
credibility determinations.” Solais v.
Vesuvio's II Pizza & Grill, Inc., No.
1:15-cv-227, 2016 WL 1057038, at *6 (M.D. N.C. Mar. 14, 2016)
(citation omitted). A plaintiff may rely on “affidavits
or other means, ” such as declarations and deposition
testimony, to show that a class of “similarly
situated” plaintiffs exist. Williams v. Long,
585 F.Supp.2d 679, 684-85 (D. Md. 2008) (concluding that
declarations would alone suffice to meet the initial
threshold for conditional certification a of collective
action). This showing must consist of more than “vague
allegations” with “meager factual support,
” but it need not enable the court to reach a
conclusive determination whether a class of similarly
situated plaintiffs exists. Mancía v. Mayflower
Textile Servs. Co., No. CCB-08-273, 2008 WL 4735344, at
*2 (D. Md. Oct.14, 2008) (citing D'Anna v. M/A-COM,
Inc., 903 F.Supp. 889, 893 (D. Md. 1995)).
after the court has conditionally certified the class,
potential class members have been identified and notified,
and discovery has been completed, a defendant may then move
to decertify the collective action, pointing to a more
developed record to support its contention that the
plaintiffs are not similarly situated to the extent that a
collective action would be the appropriate vehicle for
relief. Pelczynski, 284 F.R.D. at 368 (citation
omitted). At this “decertification stage, ” the
court applies a heightened fact-specific standard to the
“similarly situated” analysis. Steinberg v.
TQ Logistics, Inc., No. 0:10-cv-2507-JFA, 2011 WL
1335191, at *2 (D.S.C. Apr. 7, 2011).
the parties disagree as to whether Myers need only make a
“minimal” showing, based on pleadings,
affidavits, and declarations, that the members of the
putative collective action are similarly situated for the
purposes of certification, or if something more is required
at this initial stage. Loomis, citing Blaney v.
Charlotte-Mecklenburg Hosp. Auth., No.
3:10-cv-592-FDW-DSC, 2011 WL 4351631 (W.D. N.C. Sept. 16,
2011), argues that the Court should apply an
“intermediate” approach, which requires a more
stringent showing to determine whether Myers has demonstrated
that she and the potential opt-ins are similarly situated.
(Doc. No. 31, pp. 7-8). Myers, however, contends the lenient
standard of review is appropriate. (Doc. No. 33, p. 6 n. 2).
instant case, the Court finds that the lenient standard is
appropriate. First, although a couple courts in this circuit
have applied the intermediate standard, see Blaney,
2011 WL 4351631, at *3; MacGregor v. Farmers Ins.
Exch., No. 2:10-cv-03088, 2012 WL 2974679, at *3 (D.S.C.
July 20, 2012), the majority of the courts in the Fourth
Circuit adhere to the two-stage inquiry contemplated by
§ 216(b), see Long v. CPI Sec. Sys., Inc., 292
F.R.D. 296, 299 (W.D. N.C. 2013) (citing cases from the
Fourth Circuit where the two-stage analysis was used).
Second, although the parties have completed some discovery in
this case, including taking several depositions, it appears
to the court that, at the time this motion was filed,
significant additional discovery remains. See Curtis v.
Time Warner Entm't.-Advance Newhouse P'ship, No.
3:12- CV-2370-JFA, 2013 WL 1874848, at *3 (D.S.C. May 3,
2013) (citing McKnight v. D. Houston, Inc., 756
F.Supp.2d 794, 802 (S.D. Tex. 2010)) (declining
defendant's request to apply the intermediate standard
even where parties completed some discovery). Where
substantial discovery remains, courts typically apply the
more lenient standard applicable at the first step. See
McKnight. 756 F.Supp.2d at 802-03 (noting that the more
onerous standard is only appropriate “after discovery
is largely complete and the matter is ready for
trial”). Accordingly, the Court will apply the widely
accepted lenient standard to Myers' motion for
the Court finds Myers has presented sufficient evidence to
overcome the “fairly lenient” standard-that
requires only “minimal evidence”-establishing
that Myers and putative plaintiffs were similarly situated
under 29 U.S.C. § 216(b). To support her contention that
putative opt-in plaintiffs are similarly situated, Myers has
presented six declarations that she and her putative class
all (1) had similar duties as ASTs; (2) were hourly workers
subject to the same timekeeping policies and practices; (3)
were subject to a company-wide policy where ASTs were
assigned to routes and were required to use vehicles of
various sizes depending on what was available at the time;
(4) were paid under a common policy implemented by Loomis;
and (5) regularly worked more than fifty hours each week but
were not compensated for weeks when they rode in small
vehicles weighing less than 10, 000 pounds. See
(Doc. Nos. 28-4; 28-5; 28-6; 28- 7; 28-8; 28-9). Myers also
produced paystubs as evidence that Loomis failed to properly
pay ASTs overtime compensation for all weeks. (Doc. No.
28-2). Finally, Myers provided Loomis' Fleet Inventory
List that identifies both overweight and underweight vehicles
used by ASTs in its North Carolina branches. (Doc. No.
28-16). Thus, the Court finds that the limited factual
showing is sufficient to satisfy the lenient standard at this
opposes conditional certification based on its intent to
assert an affirmative defense under the motor carrier
exemption. (Doc. No. 31, pp. 10-12). Specifically, Loomis
contends that plaintiffs' claims and Loomis'
potential defense will require highly individualized
inquiries and thus the claims are inappropriate for class
certification. Id. at 15. The Court, however, finds
that this argument is premature and more appropriately
considered during the second stage of the collective action
certification when the evidentiary record and Loomis'
defenses have been fully developed. See Holmes v.
Charleston Ret. Inv'rs, LLC, 115 F.Supp.3d 653, 659
(D.S.C. 2014) (rejecting a similar argument made by the
defendant). The fact that plaintiffs might be exempt from the
FLSA due to the Motor Carrier Act (“MCA”), and
that the application of the MCA exemption might require an
individualized inquiry, does not preclude conditional
certification. See Rosinbaum v. Flowers Foods, Inc.,
238 F.Supp.3d 738, 746-47 (E.D. N.C. 2017) (“[W]here
defendants oppose conditional certification on the ground
that some defenses may require a degree of individualized
inquiry, defendants' opposition is unavailing.”);
see also Schilling v. Schmidt Baking Co., No.
TDC-16-2498, 2018 WL 3520432, at *6 (D. Md. ...